Citation Nr: 21029492
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 17-55 354
DATE: May 13, 2021

REMANDED

Entitlement to service connection for a low back disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from October 2009 to January 2013. He is a recipient of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  In March 2021, the Veteran had a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 

The Veteran was afforded a VA examination in connection with his low back disability claim in October 2016. That examination is inadequate. Specifically, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury because it was an incidental finding of an underlying congenital abnormality. The examiner failed to specify whether the congenital abnormality was a congenital disease or a congenital defect. 

In addition to the inadequate rationale provided, the examiner did not address the degenerative disc disease diagnosis which is of record, or address the Veteran's competent lay statements concerning back pain due to carrying heavy packs during long hikes.  No explanation was given as to whether this was a separate and/or superimposed back condition or if it was related to the congenital abnormality. The indicated diagnosis in the examination was mild spondylosis with degenerative disc disease L3-L4 through L5-S1. The examiner only stated the Veteran had bilateral pars intra-articularis defects, a congenital condition, on the L5 vertebra.  As such, the agency of original jurisdiction (AOJ) should obtain another VA opinion for the Veteran's low back disability. 

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records.

2. Request an addendum opinion from a suitably qualified examiner. Please identify all current disabilities of the low back, and for each opine as to whether it is at least as likely as not such disability is caused or aggravated by military service. The electronic claims file must be made available for review. The examiner must:

(a.) Opine whether the Veteran's back condition is a congenital defect or a congenital disease.

(b.) Opine whether the Veteran's degenerative disc disease is a superimposed disability.

3. Then, readjudicate the remanded issues. If the benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nolan, Shane D.

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.