Citation Nr: 21026149 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-57 301 DATE: April 29, 2021 REMANDED Entitlement to service connection for lumbar degenerative disc disease (DDD) with spondylosis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1981 to December 1985 and from December 1989 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied service connection for lumbar DDD with spondylosis. The Veteran then appealed this decision to the Court of Appeals for Veterans Claims (Court). In September 2020, the Court set aside the May 2019 Board decision and remanded the matter for further development and readjudication. Entitlement to service connection for lumbar DDD with spondylosis is remanded. In September 2020, the Court issued a decision that set aside the May 2019 Board denial of service connection for lumbar DDD with spondylosis. Specifically, the Court found that an August 2015 VA medical opinion was flawed and inadequate for adjudication purposes. See CAVC Decision, pp. 78-79. During the August 2015 examination, the Veteran noted that he injured his back playing football “around 1992” and that he worked as an oil technician as a civilian. The examiner opined that it was less likely than not that the Veteran’s DDD of the lumbar spine was related to his active duty service. Regarding rationale, the examiner stated that there was a high probability of the Veteran injuring his back during civilian employment. The examiner further stated that there was no objective evidence of an injury during service, such as a fall or a motor vehicle accident and that his current lower back disability is less likely than not related to back pain he experienced during service. The Court noted that there is no evidence of record indicating that any post-service injury occurred in the Veteran’s civilian employment as an offshore oil technician. See CAVC Decision, p. 78. The Court found that to the extent that the examiner relied on a high likelihood of such a post-service injury, without citing any evidence of such an injury, the opinion is flawed and inadequate for adjudication purposes. Id. at 78-79. The Court concluded that remand is warranted to obtain an adequate medical opinion. Id. at 79. The Board also notes that an October 1993 service treatment record indicated that the Veteran endorsed back pain for a week and a half and experienced a history of lower back pain since September 1991. See Mar. 1997 STR – Medical, p. 95. The claims file also contains a medical opinion by a private chiropractor, Dr. M.C., concluding that it is more likely than not that the Veteran’s back condition is the direct result of his service in the U.S. Marine Corps. See Nov. 2014 Medical Treatment Record – Non-Government Facility. This evidence was not adequately addressed in the August 2015 VA opinion. Accordingly, in compliance with the directives of the Court, the Board must remand the matter to afford the Veteran a new VA examination for his lower back disability, to include lumbar DDD with spondylosis. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a Court remand confers on a claimant the right to compliance with the remand orders). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an examiner other than the August 2015 examiner to ascertain the etiology of his back condition. Any indicated evaluations, studies, or tests deemed necessary should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least likely as not (a 50 percent probability or greater) that the Veteran’s back condition was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service. In providing this opinion, the examiner must address the Veteran’s report that he injured his back while playing football around 1992. See Aug. 2015 C&P Examination, p. 2. The examiner must also address the Veteran’s October 1993 service treatment record in which he noted lower back pain for one and a half weeks and a history of lower back pain since September 1991. See Mar. 1997 STR – Medical, p. 95. The examiner must also address the October 2014 medical opinion by Dr. M.C. concluding that it is more likely than not that the Veteran’s back condition is the direct result of his service in the U.S. Marine Corps. See Nov. 2014 Medical Treatment Record – Non-Government Facility. The examiner is advised that if he/she attributes any back disability to the Veteran’s post-service work duties, he/she must cite to specific documentation supporting such a conclusion, instead of mere speculation. The examiner is further advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.