Citation Nr: 21022835 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-09 486 DATE: April 19, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1973 to March 1976 and from May 1977 to January 1978. This case comes to the Board from a May 2011 decision of the Agency of Original Jurisdiction (AOJ). In May 2017, the Board concluded that the Veteran had submitted new and material evidence to reopen his previously denied claim for service connection for a lumbar spine disability and remanded the reopened claim with instructions to obtain records and to arrange a new examination. The Board remanded the case for further development in June 2018, October 2019, and, most recently, in December 2020. Except for requests for records from the Social Security Administration, which have now been added to the claims file, the main focus of the Board’s recent remand orders has been the need to obtain an adequate medical opinion on the probability that a current disability of the Veteran’s lumbar spine had its initial onset during his active duty service or is otherwise related to any in-service disease, injury, or event. The service treatment records for the Veteran’s second period of service report complaints of back pain for months with indications of muscle strain in August 1977 and facet arthritis in October 1977. In November 1977, the Veteran’s duties were restricted in a permanent physical profile. But there were x-rays of his lumbar spine in September 1977, which indicated “normal bony and disc configuration. There is a slight loss of lumbar lordosis, suggesting possible muscle spasm. Otherwise normal.” On the report of medical history at the time of his separation from service in January 1978, the Veteran indicated that he had experienced recurrent back pain. And on the reverse side of the same form, the physician wrote that the Veteran had “arthritis of the back with a permanent profile.” But on the examination report form, also dated January 1978, the examiner indicated that the spine was normal. The Veteran filed his initial claim for service connection a low back disability shortly after the end of his active duty service. The AOJ denied the claim, in part based on an x-ray report, dated May 1978. That report indicates, “slight scoliosis convexity to the left in the lower lumbar spine and this is substantiated on the oblique views and not believed to be due to positioning. The disc joint spaces show no narrowing with a slight relative narrowing at L5-S1 being a variation of normal. No appreciable arthritic changes. Zygapophyseal and sacroiliac articulations are normal and there is no other finding of note.” The AOJ obtained a report in January 2020 which indicates that, in the examiner’s opinion, the Veteran’s current arthritis of the lumbar spine is unrelated to service. To support that opinion, the examiner relied on the September 1977 and May 1978 x-rays. This evidence, the examiner argued, indicates that the Army medical personnel who added a diagnosis of facet arthritis to the service treatment records were mistaken. The examiner wrote that the Veteran’s current lumbar spine arthritis was the result of the natural aging process. The same examiner provided a separate unfavorable opinion concerning spondylosis, another of the Veteran’s current lumbar spine disabilities, and that opinion relied on a similar rationale. According to the examiner, aging is the primary cause of spondylosis. The Board issued its most recent remand because neither of the January 2020 opinions addressed the question of whether the Veteran’s arthritis had its initial onset within the first twelve months after his discharge from active duty. This question is relevant because arthritis is a “chronic disease” for which service connection is presumed if it manifests to a compensable degree within that period. See 38 C.F.R. §§ 3.307, 3.309. The AOJ obtained the requested opinion in January 2021. In the examiner’s opinion, it was less likely than not that the Veteran’s arthritis had its initial onset within the first post-service year. Like the January 2020 opinions, the rationale for this opinion relies heavily on the September 1977 and May 1978 x-ray reports. Based on these reports and the January 1978 separation examination report, the January 2021 examiner opined that there had been a “resolution of an acute low back strain prior to separation.” According to the examiner, the May 1978 x-ray and a subsequent interval of almost ten years before the appearance of subsequent medical records describing back pain supported his conclusion that arthritis was not present within the Veteran’s first post-service year. The presence of a permanent physical profile at the time of the Veteran’s separation from service and the Veteran’s indication of recurrent back pain in the January 1978 report of medical history are in tension with the January 2021 opinion. But both pieces of evidence are consistent with the opinion if one accepts the examiner’s theory that the in-service diagnosis of facet arthritis was mistaken. However, the subsequent October 1988 records include an x-ray report which indicates, “Findings suggestive of old trauma affecting L4 as described above. Clinical correlation is needed to ascertain whether this is truly acute or chronic changes.” The suggestion that an “old trauma” was still affecting the lumbar spine more than ten years after separation from active duty service potentially undermines the January 2021 opinion. Cf. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Unfortunately, the January 2021 opinion fails to discuss the reference to an “old trauma” in the October 1988 x-ray report and the failure to do so, under the circumstances of this case, renders the opinion inadequate. Although the Board regrets associated delay, it is necessary to remand this case to obtain an adequate opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran’s VA treatment since December 2020. 2. Forward the claims file, together with a copy of this remand, to the physician who prepared the most recent January 2021 opinion on the etiology of the Veteran’s current lumbar spine disability. If the January 2021 examiner is unavailable for any reason, the AOJ should obtain the requested opinion from another qualified person. If the examiner believes that a new in-person examination is needed before he or she can prepare the requested opinion, a new in-person examination should be arranged. Otherwise, the examiner should prepare an addendum report after a thorough review of the claims file. After completing the records review and, if necessary, the examination, the examiner should respond to these questions: (a) Is it at least as likely as not that any current disability of the Veteran’s lumbar spine had its initial onset during his active duty service or is otherwise related to any in-service disease, injury, or event, including the back strain noted in the service treatment records in August 1977? (b) Is it at least as likely as not that the Veteran’s lumbar spine arthritis had its initial onset within one year from the date of his separation from active duty? The examiner should provide a rationale thoroughly explaining the medical reasons for his or her conclusions. In the requested report, THE EXAMINER SHOULD ADDRESS THE OCTOBER 1988 X-RAY REPORT INDICATING “FINDINGS SUGGESTIVE OF OLD TRAUMA AFFECTING L4 AS DESCRIBED ABOVE.” If the examiner continues to believe, as stated in the January 2021 opinion, that the Veteran’s acute muscle strain of the lumbar spine explains the Veteran’s in-service complaints of back pain and that this lumbar strain resolved before the Veteran’s separation from service, the examiner should explain how this conclusion is consistent with the October 1988 x-ray report’s suggestion of an “old trauma” affecting the lumbar spine at L4. Is it likely that an in-service injury (whether correctly diagnosed as muscle strain, arthritis, spondylosis, or degenerative changes) had its initial onset in service and was still causing chronic back pain in October 1988? Why or why not? 3. The AOJ should review the medical opinion and ensure that it complies with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.