Citation Nr: 21023423 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-02 470 DATE: April 20, 2021 REMANDED Entitlement to service connection for multilevel degenerative disc disease (DDD) and degenerative joint disease (DJD) with radiculopathy (claimed as a lower back condition) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1976 to September 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In the July 2018 prior Board decision, the Veteran’s claim on appeal was reopened and remanded to complete the Veteran’s requested Board hearing. In July 2020, this matter came back before the Board. At this time, the Board remanded this issue for further development. The Board is aware this matter was remanded twice before (and regrets the delay in final adjudication inherent with yet another remand). However, the response provided has been inadequate to comply with the previous remand, and corrective action remains necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the matters under consideration are of such medical complexity that the Board finds at this juncture that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, as discussed below, the etiology of the claimed disorder, in light of the Veteran’s contentions, require an expert opinion regarding the musculoskeletal system. For the reasons below, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 1. Low Back Disorder The claim for entitlement to service connection for multilevel degenerative disc disease (DDD) and degenerative joint disease (DJD) with radiculopathy (back condition) must be remanded for a new VA medical opinion, as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the Board’s prior remand directives for this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2020, the Board remanded this claim for a medical opinion to determine the nature and etiology of the Veteran’s back condition. Specifically, the Board’s remand directed the RO to “discuss whether the November 1978 incident where the Veteran fell out of the truck, AND his recurrent back pain during service were early manifestations of the Veteran’s multilevel DDD and DJD with radiculopathy.” The Board directive instructed the VA examiner to discuss the Veteran’s lay statements of continuous back pain since separation from service, specific medical records, and provide a reasoned medical explanation for the opinion. See July 2020 Board Decision. This did not occur as directed in the July 2020 Board decision. See November 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). For instance, the VA examiner only outlined the Veteran’s medical history, but did not discuss the November 9, 1978; July 24, 1979; May 20, 1980; June 9, 1980, July 22, 1980; or July 20, 2000 service treatment records as requested in the prior Board remand. The examiner did not provide an adequate rationale in support of his medical opinion, simply stating that since the Veteran had a long gap in treatment and complaints of back pain, chronicity and continuity of symptoms is not confirmed. Essentially, not discussing the Veteran’s lay statements regarding his symptoms and history of his back condition as the VA examiner merely stated that there is not enough evidence to support his claim. This includes, but is not limited to the Veteran’s January 2014 notice of disagreement, March 2014 statement in support of claim, January 2015 VA Form 9, and March 2018 Board hearing transcript. Finally, the opinion violated the Court’s holding in Jones, where the examiner did not provide a reason as to why an opinion would be speculative in responding to whether “recurrent back pain during service were early manifestations of the Veteran’s multilevel DDD and DJD with radiculopathy.” See November 2020 VA Medical Opinion DBQ at 8; see Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) ("[I]t must be clear . . . that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence . . . ."). Given the aforementioned, the Board finds a remand for an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The matter is REMANDED for the following action: 1. Obtain an advisory medical opinion from an independent medical expert regarding the etiology of the Veteran's diagnosed low back disorders pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The examiner should be provided the claims file and state whether s/he has reviewed the file. The examiner is asked to address the following: 2. Is it at least as likely as not (50 percent or greater) that the notations within the Veteran’s service treatment records, which diagnosed the Veteran with low back strain and low back pain - caused by the Veteran falling off the back of a two and half ton truck with a pack on his back, landing on the middle of his back - the beginning manifestations of or a contributor to the Veteran’s current multilevel DDD and DJD with radiculopathy? (a) In providing this opinion, the examiner must address the following: (i) A November 9, 1978 service treatment note, the Veteran reported he injured his back when he fell off a two and half ton truck carrying a pack and landed on the middle of his back. (ii) a July 24, 1979 service treatment record, the Veteran reported a history of reoccurring lumbar pain for the previous 8 to 12 months. (iii) a July 20, 2000 service treatment record, the Veteran reported lumbar pain. (iv) a May 20, 1980service treatment record, the Veteran reported lower back pain. (v) a June 9, 1980 service treatment record, the Veteran reported pain in lumbar area. The report mentions a follow up in two weeks by Dr. B. for back pain. (vi) a July 22, 1980 service treatment record, the Veteran complained of lower back pain from the November 1978 incident. The examiner noted lower back pain with possible muscle strain. The Veteran reported light duty. (vii) a May 20, 1980 service treatment record, the Veteran complained of continued lower back pain for the last year. (b) The examiner must discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include the Veteran’s ongoing reports of back pain. This includes the following: (i) January 24, 2014 Notice of Disagreement (ii) March 20, 2014 Statement in Support of Claim (iii) January 16, 2015 VA Form 9 (iv) March 2018 Board Hearing Transcript • The examiner is advised that the Veteran is competent to report his symptoms and history, and reports must be acknowledged and considered in formulating any opinion. • If the examiner rejects the Veteran’s reports of symptomatology, the examiner must provide an explanation for doing so. (c) The VA examiner is asked to discuss the Veteran’s post-service occupation and occupational related injuries and motor vehicle accidents. If the examiner determines that the Veteran’s current back condition was caused by his post-service occupation and injuries, an explanation is required. • Any opinion expressed by the VA examiner MUST “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). • If medical literature is relied upon in rendering this determination, the expert should identify and specifically cite each reference material utilized 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.