Citation Nr: 21024997 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 10-27 434 DATE: April 27, 2021 REMANDED Entitlement to service connection for a back disorder, to include scoliosis, spondylolysis, and degenerative joint and disc disease of the lumbar spine, is remanded. Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to a back disorder, is remanded. Entitlement to service connection for headaches, to include as secondary to a back disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 19, 1987, to June 24, 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2013. A transcript is of record. Upon review, the Board finds that further development is needed prior to adjudication of the issues. In January 2020, the Board noted that the issue of entitlement to service connection for a lumbar spine disorder posed a medical problem of such complexity that an advisory opinion from an independent medical expert was required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The Board directed the Agency of Original Jurisdiction (AOJ) to follow the established procedures for requesting an advisory opinion pursuant to 38 U.S.C. § 5109 on remand. In a March 2020, the AOJ obtained a medical opinion from a nurse practitioner through the Veterans Evaluation Services (VES). The examiner stated that the Veteran had current diagnoses of spondylosis, degenerative joint disease, and degenerative disc disease of the lumbar spine. She also stated that the scoliosis was not present on x-ray and magnetic resonance imaging (MRI) reports following the Veteran’s separation from service. However, given these conflicting indications, the examiner did not clearly address whether the Veteran has spondylolysis of the lumbar spine or whether any prior diagnosis had resolved or was misdiagnosed, as previously directed by the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The March 2020 examiner opined that the Veteran’s degenerative disc disease, degenerative joint disease, and spondylosis of the lumbar spine were less likely than not manifested in or otherwise related to his active duty service. In so finding, the examiner stated that there was no evidence to support that an injury in 1987 caused degeneration of the lumbar spine. She stated that degeneration of the spine is caused by wear and tear over time and is a natural process of aging. The examiner further stated that the Veteran worked as a factory worker for several years lifting and walking, which can accelerate degeneration. However, the examiner did not address the relevance, if any, of the June 1987 in-service diagnosis of spondylolysis that pre-dated any post-service employment in physically strenuous occupations or the Veteran’s age at the time of such a diagnosis. Based on the foregoing, the Board again finds that the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Therefore, the AOJ should follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. The Board also finds that the issues of entitlement to service connection for shoulder and headache disorders are inextricably intertwined with the Veteran’s claim for service connection for a back disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following action: 1. The AOJ should follow the established procedures for requesting an advisory opinion pursuant to 38 U.S.C. § 5109 regarding the nature and etiology of any current back disorders. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. He or she should review the June 2019 VHA medical opinion request that provides a detailed summary of pertinent evidence. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify any back disorders present during the appeal period or within close proximity thereto. He or she should specifically state whether the Veteran has (a) scoliosis; (b) spondylolysis; (c) spondylosis; and (d) degenerative joint and degenerative disc disease of the lumbar spine. If any previously diagnosed back disorders are not found, the examiner should address whether they were misdiagnosed or have resolved. For each diagnosis identified, the examiner should indicate whether the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital “disease” for VA purposes, whereas refractive error is considered a congenital “defect.”) (a) For each current back disorder that is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran’s active duty service. (b) For each current back disorder that is a congenital disease or not a congenital defect, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran’s active duty service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran’s active duty service and whether any increase was due to the natural progression of the disorder. (c) If the examiner determines that the back disorder is not a congenital defect and/or did not clearly and unmistakably preexist service, he or she should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran’s active duty service, to include any symptomatology or injury therein. In rendering his or her opinion, the examiner should consider the service records that document treatment for back pain and x-ray findings of mild scoliosis and L5 spondylolysis. See, e.g., May 1987 service treatment records and June 1987 Entrance Physical Standards Board proceeding report. (The term “clear and unmistakable” means that the evidence is undebatable.) (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The AOJ should furnish the Veteran and his representative with a copy of the advisory opinion when it is received. 3. After completing the above actions, the AOJ should conduct any other development as may be indicated. Further development may include affording the Veteran a VA examination and/or obtaining a medical opinion addressing the other service connection claims on appeal (claimed as secondary to a back disorder). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.