Citation Nr: 21021554 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 07-05 920 DATE: April 13, 2021 REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from March 1974 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2004 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at an April 2012 video hearing before a Veterans Law Judge no longer employed by the Board. The Veteran was notified in a letter of his options regarding a new hearing before a different Veterans Law Judge under 38 C.F.R. § 20.706 and declined in December 2016 correspondence. See 38 U.S.C.§ 7107. The Board previously remanded this matter for further development in May 2012, February and November 2014, and February 2017 decisions. The Board denied the claims in a June 2018 decision, which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In November 2019, the Court issued a memorandum decision vacating the June 2018 denial and remanding the case back to the Board. In a July 2020 decision, the Board remanded the claims back to the AOJ in order to obtain further medical opinion consistent with the Court’s decision. 1. Entitlement to service connection for a back disorder is remanded. The Veteran asserts that his current back disability, most recently diagnosed as lumbar degenerative disc disease (DDD) with thoracic DDD, had its onset during his active service, to include a documented fall from the second story of a building. As noted above, the Board denied entitlement to service connection for a back disability in a June 2018 decision, primarily upon the basis of September 2017 VA examiner opinion. In the November 2019 memorandum decision, the Court noted that the September 2017 examiner did not fully consider the Veteran’s relevant medical history and lay statements and found the opinion inadequate. Specifically, the Court noted the opinion failed to consider January 2002 VA imaging revealing degenerative spurring of the thoracolumbar spine noted as related to an “old injury,” as well as April and June 2003 Social Security Administration (SSA) disability applications in which the Veteran described back arthritis and lower extremity radiculopathy symptoms beginning inservice. The Court described the VA examiner’s statement that the Veteran’s lay statements were “so vague it is difficult to use them” as inadequate medical rationale. The July 2020 Board remand instructed the AOJ to obtain additional medical opinion addressing the Veteran’s lay description of the onset of his symptoms as well as an explanation of whether “the veteran’s assertions are generally inconsistent with medical knowledge or implausible” and whether “the veteran’s reports about symptoms or an inservice injury align with how the disease or disability is known to develop,” consistent with the holding in Miller v. Wilkie, 32 Vet. App. 249, 259-260 (2020). The remand also directed the examiner to discuss ten specific points of evidence: the Veteran’s inservice fall; January 2002 VA imaging documenting “an old injury;” an August 2003 SSA examination noting a history of low back pain with radiation to his left lower extremity since the early 1980s; an April 2003 SSA application in which he asserted arthritis in his lower back first bothered him in January 1978 and rendered him unemployable in July 1999; a June 2003 SSA application in which he asserted back pain first began in 1974 and was affecting his daily life by 1975 but that he worked a physically demanding job from March 1985 to April 2002; a May 2004 lay statement in which he reported spending two years in a coma after a November 1974 fall; a June 2013 lay statement that nerve problems in his back have been present since the same fall; April 2014 private treatment records wherein the Veteran reported lower back pain with numbness of the right lower extremity for years; and a November 2006 report to VA clinicians that he had recently fallen and since that time noted low back pain with pain radiating down his left leg. The remand directed the examiner to provide a full rationale for any and all opinions. The AOJ obtained an addendum opinion in October 2020. The VA examiner opined that it was less likely than not that the Veteran’s current back disorders had their onset during his active service or were otherwise related to service, to include his November 1974 fall. The examiner reasoned that the Veteran’s documented arthritis and anatomic changes, as noted in January 2002 imaging, appear consistent with aging and the nature of the work the Veteran performed post-service. He stated that there did not appear to be a nexus between the Veteran’s fall and his back disorders as the radiographs did not support a clinical connection and “the back complaints as noted do not correspond to pathology changes.” The examiner concluded that the Veteran’s complaints of lower back pain since the 1980’s were inconsistent and stated that the points of evidence listed in the remand directives did not impact the given rationale. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board itself errs in failing to ensure compliance with the terms of a remand order.). In this case, the Court’s November 2019 decision found the previous medical opinion inadequate as the examiner failed to account for the January 2002 report accompanying thoracolumbar spine imaging that related the degenerative changes to an “old injury,” as well as to consider the Veteran’s lay statements regarding the onset of his symptoms. While the October 2020 examiner addressed the Veteran’s lay statements regarding symptomatology as “inconsistent,” and stated they did not affect the given rationale, he failed to specifically discuss the statements as instructed by July 2020 Board remand. Furthermore, the examiner failed to discuss the January 2002 report documenting an “old injury.” Therefore, an additional remand is necessary to obtain a VA addendum opinion in order to comply with the Court’s decision as well as the Board’s prior remand directives. 2. Entitlement to a TDIU is remanded. The Veteran’s entitlement to a TDIU is inextricably intertwined with the issue of entitlement to service connection for a back disorder remanded herein, as a decision on the back disorder could significantly affect a decision on TDIU. Accordingly, action on the issue of entitlement to a TDIU is deferred. See Harris v. Derwinski, 1Vet. App.180 (1991). The matters are REMANDED for the following action: 1. Request an addendum opinion to determine the nature and etiology of the Veteran’s back disabilities. No further examination of the Veteran is required unless the examiner deems it necessary. The entire claims file, including a copy of this remand and the Court’s November 2019 Memorandum decision, should be made available to and reviewed by the examiner. Following a complete review of the claims file, the examiner is asked to opine as to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s back disabilities had their onset during active duty or are otherwise related to service, to include as the result of the November 1974 fall documented in his service treatment records with specific consideration of the January 2002 report accompanying thoracolumbar spine imaging that related the degenerative changes to an “old injury” supports a finding that the current back disability is related to in-service injury? In addressing this question, the examiner is directed to address (1) through (10) below: (1) The November 1974 fall injury resulting in cerebral contusion and extended loss of consciousness. (2) The January 2002 VA diagnosis of an “old injury” and narrowed intervertebral disc space of L5-S1 with mild degenerative joint disease for which the Veteran was given a depomedrol injection. (3) The August 2003 Internal Medicine Examination (SSA records) that diagnosed a history of pain in the lumbosacral area, noting low back pain with radiation to his left lower extremity since the early 1980s. (4) The Veteran’s April 2003 SSA application wherein he asserted the arthritis in his lower back first bothered him in January 1978 and rendered him unable to work in July 1999. (5) The Veteran’s June 2003 SSA application wherein he asserted that his back pain first began in 1974 and was affecting his daily activities by 1975. (6) The Veteran’s April and June 2003 SSA application Work History Reports wherein he reported generally engaging in employment that required walking, standing, sitting, climbing, stooping, crouching crawling, grasping large objects, writing, and regularly (approximately 1/3 to 2/3 of his work day) lifting between 10 and 50 pounds per day from approximately March 1985 to April 2002. (7) The Veteran’s May 2004 statement that he was in a coma for 2 years after a November 1974 fall. (8) The Veteran’s June 2013 lay statement that the nerve problem in his back has been constant since his 1974 head injury. (9) The April 2014 private medical treatment record wherein the Veteran reported lower back pain with numbness on the right side radiating into the right leg for years. (10) The Veteran’s November 2006 report to VA treatment providers that he had recently fallen and since that time noticed low back pain as well as pain radiating down his left leg. The examiner is requested to state whether the Veteran’s inservice fall as well as the reported symptomatology in items (1) through (10) above are “medically consistent” with how his currently diagnosed back disorders are known to develop. A complete rationale must be provided for all opinions. The Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records, and any reliance on this fact will render the opinion inadequate. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. Merely saying he or she cannot respond will not suffice. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.