Citation Nr: 21027119 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-08 338 DATE: May 4, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1995 to June 1995 and from October 2003 to April 2005, with service in Iraq from March 2004 to March 2005. The claims file contains an additional Form DD 214 indicating further active duty service in the 1980s. However, the service dates on the photocopied form are illegible. The DD 214 for the period from January 1995 to June 1995 does reflect an additional 4 months and 18 days of prior active service. This case comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied the Veteran's claim of service connection for a lumbar spine disability. The Veteran's claim was originally denied in a March 2009 rating decision, which became final after he did not file a Notice of Disagreement (NOD) or submit new and material evidence within one year of the rating decision. In a January 2016 decision, the Board found that new and material evidence had been received to reopen the claim and remanded the issue for a VA examination. This matter was again before the Board in March 2018 and June 2020, and it was remanded for further evidentiary development. The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) in an August 2014 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. Entitlement to service connection for a lumbar spine disability is remanded. A remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). Throughout the rating period on appeal, the Veteran has been diagnosed with degenerative disc disease of the lumbar spine. He asserts that his diagnosed disability was incurred in, or is otherwise related to, his active duty service. The Veteran's VA treatment records reveal that X-rays conducted in April 2008 showed degenerative changes of the lumbar spine. An MRI performed in November 2008 revealed desiccated discs. Treatment notes dated in October and December 2008 indicate that the Veteran reported back pain dating back to 2005, while he was in service. During the August 2014 hearing, the Veteran testified that his combat equipment, which was worn daily during his deployment in Iraq, weighed between 60 and 100 pounds. He stated that the nature of his work as a field artillery officer involved regularly lifting artillery, with rounds weighing upwards of 50 to 60 pounds. He also described two specific back injuries incurred while in service. First, he testified that he tweaked his back while assisting his supply sergeant in loading and unloading trucks. The second injury occurred while the Veteran was lifting weights during a workout, and he described that injury as being more painful than the first. The Veteran submitted letters from non-VA treatment providers dated in June and October 2018. In the June letter, G.F., M.D. stated that he had seen the Veteran for back problems, which the Veteran claimed began during his deployment in 2004. Dr. F. stated that it is certainly possible that the Veteran's in-service back pain could have persisted to cause his current disability, but he could not provide an opinion as to more than the mere possibility because he was not treating the Veteran at that time. In the October letter, D.B., D.C., P.A. stated that he treated the Veteran twice in 2012 for low back pain. His letter also states that the Veteran told him that his back pain started in 2004 and indicates that it is possible that his current disability began in service. In its June 2020 decision, the Board remanded the issue of service connection for a lumbar spine disability for a new VA examination. The examiner was asked to opine as to whether a lumbar spine disability at least as likely as not had its onset during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran's two asserted in-service back injuries. The remand instructions directed the examiner to consider the Veteran's testimony regarding the weight of his equipment and the artillery rounds he carried, as well as his two in-service back injuries. The examiner was also instructed to consider the two letters from the Veteran's non-VA treatment providers, submitted in June and October 2018, discussing his back injuries. A VA examination was conducted in August 2020, with an addendum medical opinion issued in November 2020. The examiner opined that the Veteran's back disability is less likely than not related to his active duty service. He stated that degenerative arthritis develops over a long period of time and is related to aging, and there is a significant gap in time between the reported in-service injuries and his post-service treatment for back problems. He opined that any weight-lifting injury would have been acute in nature and would not have contributed to his degenerative disc disease. If his degenerative arthritis were related to the weight-lifting injury, the examiner opined that the Veteran would have had more complaints of back pain and arthritis in multiple joints, because lifting weights involves the use of multiple joints and muscles. The Board finds the August 2020 medical opinion and November 2020 addendum opinion to be inadequate for the purposes of adjudicating this claim because the examiner did not consider whether the Veteran's lumbar spine disability could be related to his service by any means other than his reported weight-lifting injury. He was asked to include discussion of the Veteran's testimony about wearing heavy equipment, carrying heavy artillery, injuring his back while lifting weights, and tweaking his back while loading boxes on and off of a truck. His rationale explained that the Veteran's lumbar spine disability is not related to the weight-lifting accident but did not discuss whether it could have been caused by the weight of his equipment; the frequent lifting of artillery; the truck-loading back injury; or any other in-service event, injury, or illness. In addition, the examiner noted that the date of diagnosis of degenerative disc disease was in August 2020, but X-rays performed in 2008 revealed degenerative changes. Accordingly, the Board finds that an addendum opinion is warranted. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records. 2. The claims file contains a Form DD 214 indicating active duty service in the 1980s, but the service dates on the photocopied form are illegible. Please obtain and associate with the claims file a legible Form DD 214. If such form is not available, please confirm whether the Veteran had additional active duty service during the 1980s. 3. After completion of #1 and #2, obtain an addendum opinion from the August 2020 examiner. If that individual is unavailable, then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be reviewed by the examiner and such review should be noted in the examination report. A VA examination is only necessary if deemed so by the examiner. The examiner should opine as to the following: (a.) Is it at least as likely as not (a 50 percent or greater possibility) that the Veteran's diagnosed lumbar spine disability is caused by, or is otherwise related to, his active duty service, to include wearing heavy combat equipment, carrying artillery, and/or his reported in-service injury while loading boxes? (b.) Is it at least as likely as not (a 50 percent or greater possibility) that the Veteran's diagnosed degenerative disc disease of the lumbar spine manifested itself to a compensable degree within one year of the Veteran's separation from service? (Continued on the next page) The examiner must provide a comprehensive rationale for each proffered opinion. The examiner's rationale should include discussion of the Veteran's hearing testimony, letters from his private treatment providers dated in June and October 2018, 2008 X-ray and MRI revealing degenerative disc disease, and 2008 treatment records noting that the Veteran has complained of back pain since 2005. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.