Citation Nr: 21025813 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 12-01 633 DATE: April 29, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to October 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Board reopened and remanded the Veteran’s claim for service connection for a low back disorder for additional development, and, in August 2016, denied such claim. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In April 2017, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the Board’s August 2016 decision and remanded it for further consideration. In October 2017, the Board remanded the claim for additional development and, in November 2018, again denied service connection for a low back disorder. The Veteran subsequently appealed such denial to the Court, and, in June 2019, the Court granted a Joint Motion for Remand (JMR) that vacated the Board’s November 2018 decision and remanded it for further consideration. This issue was previously before the Board in November 2019 when it was remanded for further development consistent with the terms set forth in the June 2019 JMR. Entitlement to service connection for a low back disorder As previously noted, in June 2019, the Court granted a JMR that vacated the Board’s November 2018 denial of service connection for a low back disorder. In this regard, the parties observed that the Board failed to discuss whether an August 2018 VA medical opinion substantially complied with its October 2017 remand directives. The October 2017 Board remand directed the Agency of Original Jurisdiction (AOJ) to obtain an opinion identifying all current and prior low back disorders and, for all disorders other than those with a congenital etiology, address whether it is at least as likely as not caused by, or otherwise related to, the Veteran’s military service, to include, generally, her airborne training as well as a July 1982 in-service injury during service training, and, if a disorder is due to a non-service-related etiology, such as a genetic disposition, the aging process, escalation of BMI, or macromastia, explain why. Thereafter, the August 2018 VA examiner opined that the Veteran’s degenerative back disorders were not related to service, but were instead most likely the result of aging, genetic factors, escalating BMI, or macromastia, and while the examiner discussed aging as “the risk factor with the highest predictive value”, she did not: (1) explain how such factor played a role in the Veteran’s particular case or the role of the other alternative causes she mentioned (genetics, increasing BMI, macromastia), or (2) explain why the Veteran’s airborne training played no role, which the parties found to be especially significant since she noted that “[disc] generation has long been associated with certain activities,” citing in particular “daily spine loading” and “whole body vibration,” although she also noted one study finding a lack of association of degenerative disc disease with physical activity. Consequently, the Board remanded the matter in November 2019 in order to obtain an addendum opinion addressing the etiology of the Veteran’s non-congenital low back disorders from a new examiner. The Board directed the examiner to consider all of the Veteran’s non-congenital low back disorders to include acute lumbar strain, degenerative disc disease (DDD), and degenerative joint disease (DJD), and provide an opinion regarding whether these disabilities are due to her service, to include her airborne training and July 1982 in-service injury. If the Veteran’s low back disorder was found to be due to a non-service-related etiology, the examiner was asked to explain why and explain how the factors played a role in this Veteran’s case and how her airborne training played no role. The examiner was advised that the lack of evidence documenting in-service treatment for a low back disorder could not serve as the sole basis for a negative opinion. The Veteran was subsequently provided with a back conditions examination in December 2019 where she was noted to have diagnoses of DDD and facet arthropathy. The examiner opined that the Veteran’s facet arthropathy and DDD were less likely than not due to her service, to include her airborne training or July 1982 in-service injury because her diagnoses “are common degenerative conditions of aging.” The examiner noted that “given no STR documentation of back injury during her jump incident and no treatment for back pathology until 2009, no nexus is reasonable with service and no correlation with her C-spine is reasonable.” The examiner added that “DDD is a condition for which ALL people and beings that walk erect deal with due to progressive loading of the disc tissue caused by gravity.” She noted that it could become pathological by “causing nerve root irritation or narrowing vertebral space,” and that “injury can accelerate this, other etiology that causes an increased gravitational force.” Regarding the November 2018 opinion, the examiner added that “it is not wholly correct to assimilate DDD solely with activity, since as stated it is actually a natural course of aging due to our biomechanics and can be exacerbated and lead to a potential pathology via life experience and injury.” The examiner concluded by stating that “this Veteran’s presentation is very likely a case of normal aging process with potentially some influence from macromastia.” The Board finds that another addendum medical opinion is required prior to adjudication of this issue. First, the Board notes that the December 2019 examiner did not address all of the Veteran’s non-congenital low back disorders in providing an etiology opinion, to include acute lumbar strain and DJD. Second, the examiner noted that the Veteran’s DDD is a natural component of aging and that it is not correct to assimilate DDD “solely with activity,” and that it “can be exacerbated and lead to potential pathology via life experience and injury;” however, the examiner did not explain how the Veteran’s airborne training in service or her July 1982 accident did not in fact exacerbate her DDD. The examiner also did not provide an explanation as to how the Veteran’s macromastia potentially influenced her disorder. Additionally, the examiner did not explain whether the Veteran’s airborne training in service played any role in her current disorder. Finally, the December 2019 examiner based her negative nexus opinion on the lack of documentation of a back injury in the Veteran’s service treatment records. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion as to the nature and etiology of the Veteran’s low back disorder. The record, to include a complete copy of this Remand, should be made available to, and be reviewed by, the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Based on review of the evidence contained therein, the examiner should specifically offer responses to the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s low back disorder, to include acute lumbar strain, DDD, DJD, and facet arthropathy had its onset in service or is otherwise etiologically related to any in-service disease, injury, or event in service, to include her airborne training in general and/or a July 1982 in-service injury during airborne training when she hit the side of a plane door? b) If a non-congenital low back disorder is found to be due to a non-service-related etiology, such as genetic disposition, the aging process, escalation of BMI, or macromastia, please explain why. In this regard, the examiner is requested to (1) explain how such factor(s) played a role in the Veteran’s particular case and (2) explain why the Veteran’s airborne training played no role. The examiner is advised that the lack of evidence documenting in-service treatment for a low back disorder cannot serve as the sole basis for a negative opinion. A rationale for any opinion offered should be provided. 2. Thereafter, readjudicate the issue on appeal. James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.