Citation Nr: 21023793 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-00 194 DATE: April 21, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1968 to January 1969. This matter comes before the Board of Veterans’ Appeals (“Board”) by a December 2020 order of the United States Court of Appeals for Veterans Claims (“CAVC”), which granted a Joint Motion for Remand (“JMR”) vacating a May 2020 Board’s decision denying entitlement to service connection for a lumbar spine condition, and remanding the matter to obtain a new examination or an addendum opinion. In a previous September 2019 order, CAVC set aside part of an April 2018 Board’s decision and remanded the matter to the Board for additional development, after which the claim was denied in the May 2020 Board’s decision. The issue initially arose from a June 2010 rating decision of the Department of Veterans Affairs (“VA”) Regional Office (“RO”). Entitlement to service connection for a lumbar spine disability is remanded. In the November 2020 JMR, the parties (the Veteran and the Secretary of VA) agreed that in its May 2020 decision, the Board relied on an inadequate June 2017 VA medical opinion when it concluded that the Veteran’s lumbar spine condition “was clearly and unmistakably not aggravated by active service and that the condition was clearly and unmistakably increased due to the natural progress of the disease.” The Board notes that the prior May 2020 decision contained a finding that “Clear and unmistakable evidence demonstrates that the Veteran’s pre-existing lumbar spine disability was not aggravated beyond its natural progression by an inservice event, injury, or illness.” The parties to the JMR further agreed that the examiner addressed both of those questions, concluding that the Veteran’s condition was not aggravated by service and that any increase was due to the natural progress of the disease. The examiner did not, however, support those conclusions with any rationale. Because the examiner did not provide any rationale to support the opinion, the Board lacked the clear and unmistakable evidence required to rebut the presumption of aggravation. Consequently, the parties agreed that a new examination or an addendum opinion should be obtained to re-address the questions with adequate supporting rationale. The Board notes that in a December 2018 Appellant Brief, filed in a previous appeal to CAVC, the Veteran argued that his lumbar spine condition was aggravated beyond its natural progression during basic training in active service. In support of this argument, the Veteran stated that even though the September 1968 entrance exam noted a crooked back and recurrent back pain for five years, the pain only occurred every six to eight months and was not a constant bother and was hardly a problem before entering the military service. The Veteran also argued that he was found fit for service during the entrance examination, including an addendum note on December 3, 1968, and there were two normal x-rays noted in December 1968 service treatment records. He further stated that he had to go through heavy physical training, including jumping, swinging, twisting, and lifting laundry bags. Consequently, he called in sick numerous times, which is noted in the service treatment records. He argued that the first abnormal x-ray was found in January 1969, which noted scoliosis and settling of L5/S1, asymmetrical facets with degenerative arthritis of LS spine, and he was separated from service due to this newly diagnosed condition. In essence, the Veteran argued that his lumbar spine condition did not exist prior to entering the active service, and even if it was, the active service aggravated it beyond natural progression, specifically the training. During the June 2017 VA examination, the examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine and opined that there is clear and unmistakable evidence that the Veteran’s lumbar spine disability pre-existed his active service. In providing the supporting rationale, the examiner stated that the Veteran reported in his enlistment physical examination that he had a crooked back (lordosis). When questioned, the Veteran replied that he saw a doctor prior to enlistment when he hurt his back lifting a palm tree while working in his family’s landscaping business. The examiner further stated that the Veteran’s x-ray in January 1969 also showed degenerative arthritis of the lumbar spine. Degeneration of the spine does not occur suddenly in a matter of months and develops over time. The examiner also opined that the Veteran’s lumbar spine disability clearly and unmistakably was not aggravated by active service. As a supporting rationale, the examiner merely stated that the Veteran’s current lumbar spine condition is clearly and unmistakably increased due to the natural progress of the disease. The Board finds the above rationale regarding aggravation very conclusory and without an adequate explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Furthermore, the examiner did not discuss the Veteran’s contentions, in-service sick calls, and two normal x-rays noted during service in December 1968. Consequently, a remand is warranted to obtain and addendum opinion with a clear and complete rationale. The matter is REMANDED for the following action: 1. Forward the claims file, and a copy of this remand and CAVC decision to the examiner who rendered the June 2017 medical opinion, or to an appropriate clinician if the June 2017 examiner is unavailable, to obtain an addendum opinion on the nature and etiology of the Veteran’s lumbar spine condition. In-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. 2. After reviewing the claims file, the examiner should address the following: (a) Whether the evidence of record clearly and unmistakably shows (i.e., it is undebatable) that the Veteran had lumbar spine condition that existed prior to his entry into the military service. (b) If the lumbar spine condition existed prior to the Veteran’s entry into service, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the preexisting lumbar spine condition was not aggravated by service or that any increase in disability was due to the natural progression of the disease. In providing the above opinions, the examiner is advised to address the Veteran’s contentions, entrance and separation examinations, in-service sick calls, and in-service x-ray reports as noted in documents associated with the claims file, with entries dated: (i) 10/29/2009, titled “STR – Medical”; (ii) 09/19/2019, titled “CAVC Decision,” which includes the Veteran’s arguments specifically pointing out two normal x-rays noted in December 1968 and one abnormal x-rays noted in January 1969, and CAVC decision. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.